Analysis:
The real value of the Zimbabwe torture ruling
In
a landmark decision, the Constitutional Court told the South African Police
Service that it had to investigate allegations of torture in Zimbabwe.
What does this mean for Comrade
Bob’s henchmen? By SIMON ALLISON for ISS TODAY.
The South African Police
Service (SAPS) really doesn’t want to investigate torture in Zimbabwe. When the
Southern Africa Litigation Centre (SALC) and the Zimbabwean Exiles Forum (ZEF)
first asked it to do so in 2008, even giving detectives a dossier of evidence
to get them started, the police took no action. When a court action (brought by
SALC) forced it to do so, the SAPS appealed. When it lost that appeal, it
appealed again.
All to no avail. In late
October, the Constitutional Court – the highest court in the land – ruled that
the SAPS must investigate the complaint. Failure to do so would violate South
Africa’s obligations under both domestic and international law.
For SALC and international
justice campaigners, the verdict was vindication after a long and difficult
fight.
It was definitive proof
that South African justice does not end at our borders, as the police would
argue, but stretches to anywhere in the world where crimes against humanity
have been committed; and, crucially, to situations where it is practical for
the SAPS to investigate.
Zimbabwe meets both these
criteria. Basic human rights have been something of a luxury there in recent
years, and particularly in 2007 – the year in which the crimes against humanity
that the SAPS must now investigate were allegedly committed.
Given Zimbabwe’s proximity,
and the hundreds of thousands of Zimbabwean refugees and asylum seekers present
in South Africa, it is also reasonable to think detectives will have an
opportunity to collect evidence.
So when can we expect to
see the first prosecutions rolling in? How long before senior Zimbabwean police
officers are arrested as they arrive at OR Tambo International Airport?
Not any time soon. Here’s
the thing: legally, the Constitutional Court handed down a landmark judgment.
In the real world, however, its impact may not be quite as significant.
In their detailed explanation of the verdict, Istitutue for Security
Studies (ISS) analysts Max du Plessis and Ottilia Anna Maunganidze concluded,
“What remains to be seen is whether the SAPS will indeed follow through with an
investigation; whether evidence will be gathered speedily and expertly; and
whether arrest warrants will be issued for and executed against alleged
perpetrators. It is hoped that positive action will make up for the lost time
already occasioned by the state’s varied but unsuccessful efforts to appeal the
High Court’s decision.”
Unfortunately, several
factors conspire against a sudden bout of positive action from the police – and
not just its obvious reluctance to get involved. First is simply an issue of
capacity. Investigating and prosecuting crimes against humanity is a
notoriously complex, slow and expensive business. At the pinnacle of
international justice, the International Criminal Court (ICC) costs
$140-million per year to run, with a staff of over 700. After 12 years and over
$1-billion spent, it has only secured two convictions.
While the SAPS budget is
considerably larger, at R71.02-billion for the 2013/2014 financial year, it
does have an entire country to look after – finding millions of rands to look
into crimes somewhere else is a big ask. Moreover, the budget that it does have
is not particularly well spent. As the ISS has observed before, one of the key
areas of neglect is in detective services. Unfortunately, skilled detectives
are exactly what is needed to investigate crimes against humanity.
The police unit charged
with looking into international crimes is the Crimes Against the State (CATS)
unit, which has just 26 detectives and an already heavy caseload. At present,
CATS must investigate a range of crimes such as terrorism, treason and
organised crime, in addition to the international crimes. So even if the SAPS
complies with the court order and actively investigates, it is unlikely to do
so with the financial or human resources necessary to make real headway.
Secondly, an effective
investigation of this nature requires serious political will. South Africa’s
track record in this area suggests that the necessary political will simply
does not exist. Generally, President Jacob Zuma’s administration has been
reluctant to publicly interfere in the internal affairs of other countries.
Take, for example, the
recent controversy over Uganda’s proposed anti-gay laws. South Africa’s
Constitution forbids discrimination on the grounds of sexual orientation, so
these laws were contrary to what South Africa stands for as a nation. And yet,
not only did the government refuse to condemn Uganda, but it also dispatched a
man convicted of homophobic hate speech to represent South Africa as its
ambassador to Uganda.
In that case, diplomacy
trumped values, and the same can be observed when it comes to South Africa’s
relations with its northern neighbour, which are still defined by former
president Thabo Mbeki’s ‘quiet diplomacy’ approach. This policy shies away from
criticism and blame, prioritising stability over justice. Were the executive
branch of the South African government to throw its full weight behind the
investigation into Zimbabwe, it would signal a radical new approach. There’s no
indication of that happening.
In other words, regardless
of South Africa’s Constitutional Court decision, no implicated Zimbabweans are
likely to face justice in South Africa anytime soon. This does not mean,
however, that the judgment is meaningless – just that its impact will be a
little more modest.
Perhaps the most
significant practical outcome is that the decision establishes South Africa as
hostile territory for perpetrators of crimes against humanity, genocide and war
crimes. Regardless of the executive’s approach, South African courts have
proved that they can and will live up to their responsibilities in this regard,
which makes South Africa an unsuitable destination for most perpetrators. The
world, for them, has become a slightly smaller place – and if more countries
adopt a similar approach, it could become a very small place indeed. DM
Photo: Zimbabwe's President
Robert Mugabe (R) arrives for the opening of the county's parliament in Harare,
August 26, 2008. REUTERS/Philimon Bulawayo (ZIMBABWE)
